State v. Denton

22 A. 305, 74 Md. 517, 1891 Md. LEXIS 85

Opinion

MoSherry, J.,

delivered the opinion of the Court.

The appellee was indicted by the grand jury of Howard County for embezzlement. The indictment alleged, in substance, that in July, 1889, Denton was clerk to the County Commissioners of Howard County, and that he received and took into his possession for and on account of his employers, the said County Commissioners, a certain sum of money, the property of the County Commissioners, and that he thereafter fraudulently and feloniously embezzled, secreted, and made away with the same. This count of the indictment was framed under and founded on see. 75, Art. 27 of the Code. The second count charges'the larceny of one hundred and nine dollars and seventy-two cents, “current money, a more particular description of which said money the jurors aforesaid have not and cannot give.” Each count was demurred to, and the Circuit Court having sustained the demurrer, the State has brought the record into this Court by petition as upon writ of error.

The 75tA sec. of Art. 27 of the Code provides that “whosoever, being a cashier, servant, agent, or clerk to any person, or to any body corporate, or being employed for the purpose or in the capacity of a cashier, servant, agent, or clerk by any person or body corporate, shall fraudulently embezzle any money, **,*** which, or any part whereof, shall be delivered to or received, or taken into possession by him, for or in the name or on the account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer," &c. It is insisted that a clerk to the County Commissioners is a public officer and, therefore, not within the purview of this statute, though it is not conceded that sec. 80 of the same Article is applicable to him. This latter section enacts, that “ any person holding office in this State, whether elected or appointed by the GFovernor, by the corporate authorities of Baltimore, or by any other authority legally authorized to make such appointments, who shall fraudulently embezzle or appropriate to his own use money, funds, or evidences of debt which he is by law bound to pay over, account for, or deliver to the treasurer of this State, or to any other person by law, authorized to receive the same, shall be guilty of a misdemeanor," &c. By section 1, of Art. 25 of the Code it is provided that “the County Commissioners of each county in this State are declared to be a corporation, and shall have full power to appoint * * * road supervisors, collectors of taxes, trustees of the poor, a clerk to their board, and all other officers, agents, and servants required for county purposes," &c. By the local laws of Howard County, Art. 14, sec. 44, Public Local Laws, it is enacted that “the County Commissioners may appoint a clerk, and allow him a salary not exceeding five hundred dollars per annum; and they may prescribe his duties, and may require him to give bond for the faithful performance of those duties."

We think it perfectly clear that sec. 80, of Art. 27 of the Code has no application to the case at bar, and unless sec. 75 is broad enough to cover it, there is no provision in the criminal law of Maryland to reach the appellee. As a consequence, he, and a very large class of other persons holding similar positions of a public or quasi public character, could embezzle with absolute impunity. This, it may be safely assumed, was never intended by the Legislature; and the statutes ought not to be so construed as to bring about such a result, if they are capable of being fairly interpreted in a way to embrace every fraudulent misappropriation on the part of those who hold appointments or employments or relations of trust. It is true that sec. 80 applies to public officers, but not to all public officers. That section is restricted and confined to such public officers as are required by law to account, j>ay over, or deliver to the treasurer of this State, or to any other person bylaw authorized to receive-the same, any money, funds, or evidences ^of debt, &c. If the officer be a public officer, and yet not be required by law to account with or to pay over to the State treasurer, or to some other person by law authorized to receive the money, he is not within the 80th sec., even though he should embezzle the funds which came into his hands. And he is not within the 80i7i sec. because-he does not belong to that class of public officers described in and intended to' be affected by that section. Now, the law imposes on the clerk to the County Commissioners no duty to collect or to pay over any money, either to the State treasurer or to any one else; and, whether he be treated as a public officer or a private servant, he does not fall within the class at which sec. 80 was manifestly levelled. His tenure o£ the position is at the will of the board appointing him. His duties, with two or three unimportant exceptions under Art. 51, sec. 6, and Art. 81, secs. 42 and 43, of the Oode, are no where defined in the Code, and his compensation, payable out of the public revenues of the county, is fixed and regulated by the County Commissioners. He exercises no power, apart from the exceptions just indicated, which is not performed for and on behalf of his employers. He has no independent functions, and no duties- beyond, those prescribed from time to time by the Commissioners who have appointed him. He is in every respect subordinate to them, and in no particular independent of them. Every act that he does is done, not in virtue of an independent official position held by him, hut as the clerk, the agent or the servant of a superior. He acts for them and as they direct, and not otherwise. He is, in fine, just what sec. 1, Art. 25 calls him, a clerk to a body corporate, appointed by that body, subject to its authority, and, consequently, its employé. Between him and the County Commissioners all of the ordinary attributes of service exist.

The reasons just given for excluding the appellee from the operation of the 80th sec. bring him clearly within the scope of the 15í7¿ sec. He is a clerk to a body corporate and as such clerk, according to the concessions of the demurrer, he fraudulently embezzled money received by him for and on account of his employer. The fact that he is a clerk to a public corporation does not put him outside of the *75¿7z sec. because that section is broad enough to embrace public as well as private corporations; nor does the circumstance that his salary is paid out of the public revenue of the county affect in the slightest degree his liability under this statute, because the mode of payment does not determine the character of the office held — that is, does not make it an independent office, if it he not otherwise so. The Act of 1820, ch. 162, as amended by the Acts of 1880, ch. 458, and 1886, ch. 310, forms sec. 15, of Art 21 of the Code. As originally passed it was nearly an exact transcript of 39 Geo. III, ch. 85, adopted in 1799. In 1818, (two years prior to the passage of the Act of 1820, ch. 162,) the case of Rex vs. Squire, Russ. & Ry., 349, arose under 39 Geo. III, ch. 85. In that case (which is also reported in 2 Stark. N. P. C., 349,) the prisoner was tried before Mr. Justice Bayley on an indictment for embezzling fourteen one guinea notes received by the prisoner by virtue of his employment as clerk and servant to eight persons who were overseers of the township of Leeds. It appeared that the prisoner had acted for several years for the overseers of the township of Leeds at a yearly salary, under the name of their accountant and treasurer; and as such had received and paid all the money receivable or payable on their account and had rendered to them every week a weekly account, purporting to be an account of whatever he had received and paid during that period. He received the fourteen notes from John Senior, being money due from him as overseer of another township for money supplied by the township of Leeds to a pauper in Leeds belonging to Senior’s township, and the prisoner had not entered the receipt of this money in his weekly accounts. He was convicted, but, it having been urged that the prisoner was not such a clerk or servant as the statute contemplated, the learned Judge saved the point for the consideration of the Judges. In Easter term, 1818, the Judges met and held the conviction right. They were of opinion that the prisoner was a clerk and servant within 39 Geo. Ill, ch. 85. The duties of the overseers of the poor were of a public character, and extended to the levying and collecting and disbursing of rates or taxes for the support of the poor; and the overseers themselves were public officers. 1 Bl. Com., Gh. 9, pp. 337, 359. Their accountant and treasurer held towards them precisely the same relation that a clerk holds towards the County Commissioners. With this construction of 39.Geo. Ill, ch. 85, before them the General Assembly passed the Act of 1820, ch. 162, in almost the same language used in the Act of Parliament, anddoubtless intended it to-have, the same interpretation. If that interpretation be adopted, the appellee is clearly liable under sec. 75, provided the averments of the indictment be proved. No other construction of the statute will reach the mischiefs which it was obviously designed to remedy. If sec. 15 be confined to private employes its language must he narrowed, or words must be impoj'ted into it which are not there now. This is forcibly illustrated by the case of Coats vs. The People, 22 N. Y., 245, where the New York statute was held not to apply to the keeper of a poor house appointed by the superintendent, a public official, if not a corporation, because the statute by express words confined the criminal liability to the clerk or servant of a private person. In addition to this there would then he no statute in force for the punishment of any public defaulter who was not an independent officer, other than sec. 47, of Art. 27, which does not apply to the case at bar. Eor example, deputies in the office of the clerks of the various Courts of the State, and in the office of the registers of wills, are public officers, in the sense that they are paid their salaries out of the public revenues; but these deputies, whose appointment is provided for by law are not required by any law to account for or to pay over public- money to the State treasurer, or to any other person. Now, if one of these deputies should embezzle money paid to him for or on account of his employer for the use of the State, it is clear he would not fall within the class of officers described in sec. 80, because he is not required by law to account to the State treasurer, or to any one else for any money whatever. Yet it can hardly be contended that he would not he punishable under sec. 15, as the agent, or servant or clerk of his employer. The attributes of service between such a deputy and his employer are no more distinctly marked or clearly defined than in the case at bar. In each instance the employe is merely an employe, and in no sense an independent officer. If he is an independent officer, of course, he is not and cannot be a mere servant. Therefore in an indictment under 1 and 8 Geo. IV, ch. 29, sec. 47, it was held that the prisoner was not liable because he was an independent officer. Reg. vs. Truman, 2 Cox Crim. Cases, 306.

The case of Reg. vs. Lovell, 2 Moody & Rob., 236, was-strongly pressed upon us by the appellee’s counsel, but it decides nothing in conflict with the views we have expressed. The prisoner was indicted for larceny under 7 and 8 Geo. IV, ch. 29, sec. 46, and for embezzlement under 2 W. IV, ch. 4. Sec. 46 of 7 and 8 Geo. IV, ch. 29, provided for the punishment of depredations committed by clerks and servants in cases not punishable capitally, and enacted “that if any clerk or servant shall steal any chattel, money * * * * * belonging to or in the possession or power of his master, every such offender,”' &c. should be punished in the manner there prescribed. The prisoner was clerk to the collector of customs at the Port of Falmouth, and was appointed by the commissioners of customs under 3 and 4 W. IV, ch. 51, and it was his duty to receive and place in the collector’s box each day moneys received in payment of customs. He embezzled some of the moneys. Coleridge, J., had great doubt “whether or no 7 and 8 Geo. IV, ch. 29, sec. 46, was meant to include public servants of the Crown, such as the prisoner.” He further said: “It would seem intended to protect the private dealings of the subjects only against their clerks and servants;” and he added: “But it is unnecessary to determine that point, as I have no doubt that this is a case upon the facts within the latter Act,” the Act of 2 W. IV, ch. 4. Our Act of 1820, ch. 162 was not taken from 7 and 8 Geo, IV, ch. 29, which was passed in 1827, but from 39 Geo. Ill, ch. 85, which is very much broader and more comprehensive than 7 and 8 Geo. IV, ch. 29. Sec. 46 of the latter Act related, not to embezzlement as sec. 47 did, but to larceny by clerks and servants. But beyond this, Coleridge, J., expressly refrained from determining whether the prisoner was within 7 and 8 Geo. IV, ch. 29, sec. 46, or not, and, hence, the case cannot he treated as a decision on that point.

(Decided 17th June, 1891.)

The case of State vs. Connelly, 104 N. C., 794, was also much relied on by the appellee. In that case the clerk of a Superior Court of North Carolina was indicted for embezzlement under a statute which declared that, “if any officer, agent, clerk, employe, or servant of any corporation, person or co-partnership” shall embezzle he shall he guilty of felony. And it was held that as the clerk of the Superior Court was not an officer of a corporation, but a public officer, he was not within the terms of the statute. This is obviously a different case from the one at bar.

From the views we have expressed it follows that in our opinion the ruling of the Circuit Court in sustain-, ing the demurrer to the first count of the indictment was erroneous.

The second count was properly quashed. The description of the money alleged to have been stolen was entirely too indefinite and vaguie. 2 Bish. Cr. Proc., sec. 703; Steuart vs. State, 62 Md., 413; Kearney vs. State, 48 Md., 23.

The judgment in each of these three cases must be reversed, because of the error committed in sustaining the demurrer to the first count in each indictment, and the cases will be remanded for new trials.

Judgments reversed, and . new trials atvarded.